Blogger Rights - Presented by Kit Walsh - 2015 Blogging While Brown Conference

Blogging While Brown, June 19, 2015

Bloggers, know your rights!

Kit Walsh, Staff Attorney, EFF


Common Legal Issues Involving Speech

• Publishing false information that harms reputation• Copyright and Trademark• Rights of publicity• Issues arising from user comments• Responding to legal threats• Finding legal help


Disclaimer

• Many of these areas of law vary by state• This is a general overview, not specific legal advice• If you need advice about your particular situation,

consult the resources listed at the end of the presentation


Defamation

• A false statement• That is harmful to someone’s reputation• Published “with fault” (due to negligence or malice)• Defined by state laws• Can be written (libel) or spoken (slander)


Facts vs Opinions

• Opinions can’t be defamatory

• Labeling something as an opinion is not enough

• Is it a verifiable fact?

“Not All Cocaine Addicts Are Beautiful” by Mark Micallef is licensed under CC BY-NC-SA 2.0


Top Ten Dumb Asses

• A statement that someone is a "Dumb Ass," even first among "Dumb Asses," can’t be verified

• “Dumb” can be a statement of fact, but not when used in the idiom “dumb ass”

• “Ass” is a expression of contempt void of factual content

• The meaning cannot by nature be proven false, so it can’t be defamatory


Conclusion based on disclosed facts

• Opinion is not actionable where the facts on which the opinion is based are clearly stated• “Based on discrepancies between its SEC filings and the statements in

the leaked emails, I think the corporation is defrauding its shareholders”

• If the opinion implies the allegation of further, undisclosed defamatory facts it is no longer protected• “I'm not going to say what I overheard, but it was clear the corporation is

defrauding its shareholders”


Public vs Private Figures

• Heightened standard for defamation of public figures: “actual malice”

• Public figures are those who put themselves in the public view (e.g. politicians and celebrities)

• “Limited-purpose” public figures• Voluntarily participate in public debate• Have access to media to get their own views across

• Involuntary public figures


Reporting on a Public Controversy

• Many states have a "neutral reportage" privilege• Protects "accurate and disinterested reporting“ about

potentially defamatory accusations in public controversies

• May not extend to reports on private figures


Damages

• A person suing for defamation must usually prove they suffered some damage (e.g. lost contracts or quantifiable mental anguish)

• Exceptions:• Professional character or standing• Implying someone has a sexually transmitted disease• Implying someone has committed a crime of moral turpitude

(e.g., fraud).


Libelous Examples

• Falsely describing someone as a criminal• Accusing a minister of unethical conduct• Accusing a father of violating the confidence of son


Non-libelous Examples

• Calling a political foe a "thief" and "liar" in chance encounter (because hyperbole in context)

• Calling a TV show participant a "local loser," "chicken butt" and "big skank"

• Calling someone a "bitch" or a "son of a bitch"• Changing product code name from "Carl Sagan" to

"Butt Head Astronomer"


Copyright

•Automatically applies to new creative works (e.g. art, blog post)•Prohibits copying and preparing “derivative” works like adaptations and sequels•Subject to First Amendment limitations like fair use•Different from plagiarism


Copyright Does Not Cover

• Facts, ideas, concepts, or principles• Works Created by the United States Government• Words, Phrases, or Familiar Symbols• Works in the Public Domain

• Published before 1923• Published in the US between 1923 and 1977 without a

copyright notice• Dedicated to the public domain


Fair Use

• Multifactor test, case-by-case• Purpose and character of your use

• Criticism, comment, education, research, reporting• Something different from the original purpose, with new expression• Commerciality

• Nature of the copyrighted work• Amount used• Effect on the potential market

• Does it “usurp” the demand for the original?


Fair Use Examples

• Quoting from a work• Sometimes even large portions can be used if

being commented on, discussed, or criticized• Parody

• Changing "Pretty Woman" to "Big Hairy Woman“

• Remix• Making new creative expression using bits of

other work as building block


Linking

• Linking to a website or other resource is not copyright infringement

• But it can be unlawful to induce anyone to infringe• “Go here and download this song before the record company

takes it down!”


• Works where a creator has intentionally given up some of their rights

• Why?• Visibility• Community collaboration (e.g. Wikipedia)

• Various types of CC licenses • Attribution• Share-alike• Non-commercial• Public domain dedication


Trademarks

• Distinctive names and logos that identify the source of goods or services

• Law protects against customer confusion• Can use others' trademarks to refer to the company

or product• “New Balance shoes are terrible”• walmartsucks.org

• But not in a way likely to confuse customers• “The Official NFL Blog”• “Eat burgers here at McDonards!”


Right of Publicity

• Applies when using someone’s name or likeness to your commercial advantage without consent

• Freedom of speech rights protect your use of a public figure's name and likeness in a truthful way


Right of Publicity Examples

• A newspaper's survey to determine the favorite New Kid on the Block was found to be a constitutionally protected use of the band member's name

• A newspaper's sale of a poster of its front page depicting Joe Montana is protected under the First Amendment

• A commercial featuring a robot resembling game show hostess Vanna White was found to infringe her right of publicity


Speech of Others: Comments

• Defamation in comments• Copyright infringement in comments• Commenters' copyright interests


Communications Decency Act Sec. 230

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.“


CDA 230

• Protects operator of online forum (e.g. blog comments)

• You can moderate comments without losing protection

• Does not apply to:• Federal criminal law• Intellectual property law• Speech you make• Edits that change the meaning of the original

• “Kit is not a felon”


Copyright infringement in Comments

• Section 512 of the Digital Millennium Copyright Act provides a safe harbor for online platforms

• If you comply with certain requirements, you are insulated from liability for your users' infringement


DMCA Safe Harbor

1.Designate a copyright agent2.Adopt and communicate a repeat copyright infringement policy

Can be as simple as: "If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate them."

3.Properly comply with takedown notices when received (unlike CDA 230, where there's no obligation to take down content)


Commenters' Copyright Interests

Commenters may contribute copyrightable expression You do not own the copyright in material authored by commenters

A license may be implied You can specify a license in Terms of Use


Dealing With Scary Lawyer Letters

• Cease-and-Desist letters• Complaints• Subpoenas


Cease-and-Desist Letters

• A letter sent by someone alleging some wrongdoing and demanding it end

• Just a threat to sue in the future• You don't have to do anything• But ignoring this notice may be used to argue that the

activity alleged was “willful,” leading to increased penalties


Responding to Cease-and-Desist Letters

• Evaluate the letter• Options:

• Comply and take down the content• Respond to the letter with an polite explanation of why you

think you don't have to comply• Contact a lawyer• Go public with the threat

• Careful what you say or sign


Legal Complaints (Lawsuits)

• A legal document initiating a lawsuit• Can be identified by:

• court location is listed at the top of the first page• two columns right after the heading which are separated by

a vertical line made of ")" or ":" characters• your name in the left column, listed after a "v.”• the word "Complaint", or "Petition" in the right column or in

the title


Example Complaint


Responding to a Lawsuit

Do not delay! Don’t destroy any documents! Contact a lawyer or research and write an answer Gather your information Consider notifying your insurance company


Subpoenas • A legal order commanding someone to give a sworn

testimony or release documents• Will have:

• The full name of a court• the word "Subpoena" in bold in the top third• words like "you are commanded to report"• your name • a specific date, time and location for you to appear or for you to

provide the requested materials • in some cases, the penalty for non-compliance


Responding to Subpoenas

• Do not delay• Comply or object, but do not ignore

• Motion to Quash• Contact a lawyer


Reasons to object to a subpoena

• Improper service• Scope of Request • Confidential Material• Self-incrimination


Terms of Use / Privacy Policy

• Set boundaries of appropriate use• Protect yourself• Give yourself clear license to edit and reuse user

content• Inform users of info you collect, share, and use


Protecting Commenters

• Protecting their identities• Protecting their expression


Informational Resources• EFF’s Legal Guide for Bloggers

• https://www.eff.org/issues/bloggers/legal

• Digital Media Law Project Legal Guide• https://www.dmlp.org/legal-guide/

• Chilling Effects Guide• https://www.chillingeffects.org/topics/1


Legal Help Resources

• EFF.org • Law School Clinics

• Harvard Cyberlaw Clinic• Samuelson Clinic at UC Berkeley• NYU Tech Law Clinic• UColorado Tech Law Clinic• Georgetown Tech Law Clinic• Others around the country

• State Bar Association


Thank You!

Blogger Rights - Presented by Kit Walsh - 2015 Blogging While Brown Conference

Law

Transcript of Blogger Rights - Presented by Kit Walsh - 2015 Blogging While Brown Conference